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Start PreambleStart Printed Page 4403

AGENCY:

Department of Education.

ACTION:

Notice of written findings and compliance agreement with the Vermont Department of Education.

SUMMARY:

This notice is being published in the Federal Register consistent with section 457(b)(2) of the General Education Provisions Act (GEPA). Section 457 of GEPA authorizes the U.S. Department of Education (the Department) to enter into a compliance agreement with a recipient that is failing to comply substantially with Federal program requirements. In order to enter into a compliance agreement, the Department must determine, in written findings, that the recipient cannot comply with the applicable program requirements until a future date.

On January 6, 2009, the Department entered into a compliance agreement with the Vermont Department of Education (VTDOE). Section 457(b)(2) of GEPA requires the Department to publish written findings leading to a compliance agreement, with a copy of the compliance agreement, in the Federal Register.

FOR FURTHER INFORMATION CONTACT:

If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.

Individuals with disabilities may obtain this document in an accessible format (e.g., braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

End Further InfoEnd PreambleStart Supplemental Information

SUPPLEMENTARY INFORMATION:

Title I of the Elementary and Secondary Education Act of 1965 (Title I), as amended by the No Child Left Behind Act of 2001, requires each State receiving Title I funds to satisfy certain requirements.

Under Title I, each State was required to adopt academic content and student academic achievement standards in at least mathematics, reading or language arts, and science. These standards must include the same knowledge and levels of achievement expected of all public school students in the State. Content standards must specify what all students are expected to know and be able to do; contain coherent and rigorous content; and encourage the teaching of advanced skills. Achievement standards must be aligned with the State's academic content standards and must describe at least three levels of proficiency to determine how well students in each grade are mastering the content standards. A State must provide descriptions of the competencies associated with each student's academic achievement level and must determine the assessment scores (“cut scores”) that differentiate among the achievement levels.

Title I also requires each State to implement a student assessment system to evaluate whether students are mastering the subject material reflected in the State's academic content standards. By the 2005-2006 school year, States were required to administer mathematics and reading or language arts assessments yearly during grades 3-8 and once during grades 10-12. Further, beginning with the 2007-2008 school year, each State was required to administer a science assessment in at least one grade in each of the following grade spans: 3-5, 6-9, and 10-12.

In addition to a general assessment, Title I requires States to develop and administer at least one alternate assessment for students with disabilities who cannot participate in the general assessment, with or without accommodations. An alternate assessment may be based on grade-level academic achievement standards, alternate academic achievement standards, or modified academic achievement standards. Like the general assessment, any alternate assessment must satisfy the requirements for high technical quality, including validity, reliability, accessibility, objectivity, and consistency with nationally recognized professional and technical standards.

In May 2007, VTDOE submitted evidence of its standards and assessment system. The Assistant Secretary for Elementary and Secondary Education (Assistant Secretary) submitted that evidence to a panel of experts for peer review. Following that review, the Assistant Secretary concluded that VTDOE's standards and assessment system did not meet a number of the Title I requirements.

Section 454 of GEPA, 20 U.S.C. 1234c, sets out the remedies available to the Department when it determines that a recipient “is failing to comply substantially with any requirement of law” applicable to Federal program funds the Department administers. Specifically, the Department is authorized to—

In a letter dated December 19, 2007, to Richard H. Cate, Vermont's former Commissioner of Education, the Assistant Secretary notified VTDOE that, to remain eligible to receive Title I funds, it would have to enter into a compliance agreement with the Department. The purpose of a compliance agreement is “to bring the recipient into full compliance with the applicable requirements of law as soon as feasible and not to excuse or remedy past violations of such requirements.” 20 U.S.C. 1234f(a). In order to enter into a compliance agreement with a recipient, the Department must determine, in written findings, that the recipient cannot comply until a future date with the applicable program requirements.

In accordance with the requirements of section 457(b) of GEPA, 20 U.S.C. 1234f(b), on June 5, 2008, Department officials conducted a public hearing in Vermont to assess whether a compliance agreement with VTDOE might be appropriate. Dr. Michael Hock testified at this hearing on behalf of VTDOE. The Department considered the testimony provided at the June 2008 public hearing and all other relevant information and materials and concluded that VTDOE would not be able to correct its non-compliance with Title I standards and assessment requirements immediately.

On January 12, 2009, the Assistant Secretary issued written findings holding that compliance by VTDOE with the Title I standards and assessment requirements is genuinely not feasible until a future date. Under Title I, VTDOE was required to implement its final assessment system no later than the 2005-2006 school year. The evidence that VTDOE submitted in May 2007 indicated that, well after the statutory deadline had passed, its standards and assessment system still did not fully meet Title I requirements. In addition, the compliance agreement sets out the action plan that VTDOE must implement to come into compliance with Title I requirements. Due to the enormity and complexity of the work that is needed to bring VTDOE's standards and assessment system into full compliance, VTDOE cannot immediately comply with all of the Title I requirements. Start Printed Page 4404

Vermont's Acting Commissioner of Education, Bill Talbott, and the Assistant Secretary signed the compliance agreement on January 6, 2009.

As required by section 457(b)(2) of GEPA, 20 U.S.C. 1234f(b)(2), the text of the Assistant Secretary's written findings is set forth as Appendix A and the compliance agreement is set forth as Appendix B of this notice.

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Appendix A

Written Findings of the Assistant Secretary for Elementary and Secondary Education Regarding the Compliance Agreement Between the U.S. Department of Education and the Vermont Department of Education

I. Introduction

The Assistant Secretary for Elementary and Secondary Education (Assistant Secretary) of the U.S. Department of Education (Department) has determined, pursuant to 20 U.S.C. 1234c and 1234f, that the Vermont Department of Education (VTDOE) has failed to comply substantially with certain requirements of Title I, Part A of the Elementary and Secondary Education Act of 1965 (Title I), as amended by the No Child Left Behind Act of 2001, 20 U.S.C. 6301et seq., and that it is not feasible for VTDOE to achieve full compliance immediately. Specifically, the Assistant Secretary has determined that VTDOE did not meet, within the statutory timeframe, a number of the Title I requirements concerning the academic achievement standards, technical quality, alignment, and reporting of results for Vermont's alternate assessment based on alternate academic achievement standards for students with the most significant cognitive disabilities.

For the following reasons, the Assistant Secretary has concluded that it would be appropriate to enter into a compliance agreement with VTDOE to bring it into full compliance as soon as feasible. During the effective period of the compliance agreement, which ends January 6, 2011, VTDOE will be eligible to receive Title I funds as long as it complies with the terms and conditions of the agreement as well as the provisions of Title I and other applicable Federal statutory and regulatory requirements.

II. Relevant Statutory and Regulatory Provisions

A. Title I, Part A of the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001

Title I provides financial assistance, through State educational agencies, to local educational agencies to provide services in high-poverty schools to students who are failing or at risk of failing to meet the State's student academic achievement standards. Under Title I, each State, including the District of Columbia and Puerto Rico, was required to adopt academic content and student academic achievement standards in at least mathematics, reading or language arts, and science. These standards must include the same knowledge and levels of achievement expected of all public school students in the State. Content standards must specify what all students are expected to know and be able to do; contain coherent and rigorous content; and encourage the teaching of advanced skills. Academic achievement standards must be aligned with the State's academic content standards and must describe at least three levels of proficiency to determine how well students in each grade are mastering the content standards. A State must provide descriptions of the competencies associated with each student's academic achievement level and must determine the assessment scores (“cut scores”) that differentiate among the achievement levels.

Each State was also required to implement a student assessment system used to evaluate whether students are mastering the subject material reflected in the State's academic content standards. By the 2005-2006 school year, States were required to administer mathematics and reading or language arts assessments yearly during grades 3-8 and once during grades 10-12. Further, beginning with the 2007-2008 school year, each State was required to administer a science assessment in at least one grade in each of the following grade spans: 3-5, 6-9, and 10-12. A State's assessment system must:

Be the same assessment system used to measure the achievement of all public school students in the State;

Be designed to provide coherent information about student attainment of State academic content standards across grades and subjects;

Provide for the inclusion of all students in the grades assessed, including students with disabilities and limited English proficient (LEP) students;

Be aligned with the State's academic content and student academic achievement standards;

In addition to a general assessment, States were required to develop and administer at least one alternate assessment for students with disabilities who cannot participate in the general assessment, with or without accommodations. 34 CFR 200.6(a)(2). An alternate assessment may be based on grade-level academic achievement standards, alternate academic achievement standards, or modified academic achievement standards. Like the general assessment, any alternate assessment must satisfy the requirements for high technical quality, including validity, reliability, accessibility, objectivity, and consistency with nationally recognized professional and technical standards.

B. The General Education Provisions Act

The General Education Provisions Act (GEPA) provides a number of options when the Assistant Secretary determines a recipient of Department funds is “failing to comply substantially with any requirement of law applicable to such funds.” 20 U.S.C. 1234c. In such a case, the Assistant Secretary is authorized to:

Under section 457 of GEPA, the Assistant Secretary may enter into a compliance agreement with a recipient that is failing to comply substantially with specific program requirements. 20 U.S.C. 1234f. The purpose of a compliance agreement is “to bring the recipient into full compliance with the Start Printed Page 4405applicable requirements of law as soon as feasible and not to excuse or remedy past violations of such requirements.” 20 U.S.C. 1234f(a). Before entering into a compliance agreement with a recipient, the Assistant Secretary must hold a hearing at which the recipient, affected students and parents or their representatives, and other interested parties are invited to participate. At that hearing, the recipient has the burden of persuading the Assistant Secretary that full compliance with applicable requirements of law is not feasible until a future date. 20 U.S.C. 1234f(b)(1). If, on the basis of all the evidence presented, the Assistant Secretary determines that full compliance is genuinely not feasible until a future date, the Assistant Secretary must make written findings to that effect and must publish those findings, together with the substance of any compliance agreement, in the Federal Register. 20 U.S.C. 1234f(b)(2).

A compliance agreement must set forth an expiration date, not later than three years from the date of the written findings, by which time the recipient must be in full compliance with all program requirements. 20 U.S.C. 1234f(c)(1). In addition, a compliance agreement must contain the terms and conditions with which the recipient must comply during the period that agreement is in effect. 20 U.S.C. 1234f(c)(2). If the recipient fails to comply with any of the terms and conditions of the compliance agreement, the Assistant Secretary may consider the agreement to be no longer in effect, and may take any of the compliance actions set forth above. 20 U.S.C. 1234f(d).

III. Analysis

In deciding whether a compliance agreement between the Assistant Secretary and VTDOE is appropriate, the Assistant Secretary must determine whether compliance by VTDOE with the Title I standards and assessment requirements is genuinely not feasible until a future date. 20 U.S.C. 1234f(b)(2).

A. VTDOE Has Failed to Comply Substantially With Title I Standards and Assessment Requirements

In May 2007, VTDOE submitted evidence of its standards and assessment system. The Assistant Secretary submitted that evidence to a panel of experts for peer review. Following that review, the Assistant Secretary concluded that VTDOE's standards and assessment system did not meet a number of the Title I requirements. Specifically, the Assistant Secretary determined that, to demonstrate its compliance, VTDOE had to submit the following evidence:

Academic Achievement Standards

1. Evidence of approved/adopted alternate academic achievement standards for students with the most significant cognitive disabilities in reading/language arts and mathematics for each of grades 3 through 8 and at least one grade in the 10-12 grade span.

2. Documentation of the development of academic achievement descriptors for the alternate assessment in the content area of science.

3. Evidence that the alternate academic achievement standards include for each content area:

a. At least three levels of achievement, including two levels of high achievement (e.g., proficient and advanced) that determine how well students are mastering a State's academic content standards, and a third level of achievement (e.g., basic) to provide information about the progress of lower-achieving students toward mastering the proficient and advanced levels of achievement;

b. Descriptions of the competencies associated with each achievement level; and

4. Evidence that the Board or other authority has adopted all alternate achievement standards.

5. Documentation that the State has reported separately the number and percent of those students with disabilities assessed on the alternate assessment based on alternate achievement standards, those assessed on an alternate assessment based on grade-level standards, and those included in the regular assessment (including those administered that assessment with appropriate accommodations).

6. Evidence that the State has documented the involvement of diverse stakeholders in the development of its alternate academic achievement standards.

Technical Quality

1. Evidence that the State has documented validity (in addition to the alignment of the alternate assessment with the content standards), as described in the Standards for Educational and Psychological Testing (AERA/APA/NCME, 1999).

2. For the alternate assessment, evidence that the State has provided documentation of the standard setting process, including a description the selection of judges, methodology employed, and final results.

3. For the alternate assessment(s), evidence that the State has considered the issue of reliability, as described in the Standards for Educational and Psychological Testing (AERA/APA/NCME, 1999).

4. Evidence that the State has established:

a. Clear criteria for the administration, scoring, analysis, and reporting components of its alternate assessment; and

b. A system for monitoring and improving the ongoing quality of its alternate assessment.

Alignment

1. Evidence that the Alternate Grade-Level Expectations (AGEs) and all associated tasks across grade spans submitted for the Portfolio Assessment of Alternate Grade Expectations are aligned with State academic content standards in reading and mathematics.

2. Evidence that the State has developed ongoing procedures to maintain and improve alignment between the alternate assessment and standards over time, particularly if gaps have been noted.

Reports

1. Evidence that the State will produce individual student alternate assessment reports in terms of the State's revised alternate achievement standards. With respect to such individual student reports:

a. Evidence that these individual student reports provide information for parents, teachers, and principals to help them understand and address a student's specific academic needs. This information must be displayed in a format and language that is understandable to parents, teachers, and principals, for example, through the use of descriptors that describe what students know and can do at different performance levels. The reports must be accompanied by interpretive guidance for these audiences; and

b. Evidence that the State ensures that these individual student reports will be delivered to parents, teachers, and principals as soon as possible after the alternate assessment is administered.

B. VTDOE Cannot Correct Immediately Its Noncompliance With the Title I Standards and Assessment Requirements

Under Title I, VTDOE was required to implement its final assessment system no later than the 2005-2006 school year. 20 U.S.C. 6311(b)(3). The evidence that VTDOE submitted in May 2007 indicated that, well after the statutory deadline had passed, its standards and assessment system still did not fully meet Title I requirements. In addition, substantial work is required to bring VTDOE into compliance with the Title I requirements.

At the public hearing, which was held on June 5, 2008, VTDOE presented evidence that compliance is not feasible until a future date, particularly in light of the work necessary to come into full compliance with the Title I standards and assessment requirements. In particular, Dr. Michael Hock, Vermont's Director of Educational Assessment, testified that, to bring Vermont's standards and assessment system into compliance, Vermont must document the successful completion of a number of tasks, including: Revising the State's alternate academic achievement standards for reading and mathematics to reflect an increased emphasis on academic content; using a validated standard-setting process that includes direct input from teachers or other individuals with specific expertise in the academic content areas; revising the guidelines for the collection, scoring, and reporting of student performance relative to the alternate academic achievement standards; and revising the scoring materials and procedures for the alternate assessment based on alternate academic achievement standards. Dr. Hock further testified that VTDOE intended to hold extensive training sessions for teachers on the revised frameworks for the alternate academic achievement standards. Dr. Hock stated that VTDOE needs the time afforded by a compliance agreement to bring its standards and assessment system into compliance to ensure that its alternate assessment remains an appropriate assessment for students with disabilities and that teachers are knowledgeable about the changes in the types of skills assessed as well as the types of evidence to be submitted for the portfolio assessment. Dr. Hock's testimony is consistent with the comprehensive action plan that VTDOE has Start Printed Page 4406developed and that is incorporated into the compliance agreement. That action plan sets out a very specific schedule that VTDOE has agreed to meet during the next two years for completing all of the work necessary to attain compliance with the Title I standards and assessment requirements.

Due to the enormity and complexity of the work that is needed to bring VTDOE's standards and assessment system into full compliance, VTDOE cannot immediately comply with all of the Title I requirements. As a result, the Assistant Secretary finds that it is not genuinely feasible for VTDOE to come into compliance until a future date.

IV. Conclusion

For the foregoing reasons, the Assistant Secretary finds that full compliance by VTDOE with the standards and assessment requirements of Title I is genuinely not feasible until a future date. Therefore, the Assistant Secretary has determined that it is appropriate to enter into a compliance agreement with VTDOE.

Dated: Jan. 12, 2009.

___ /s/ ___

Kerri L. Briggs, PhD

Assistant Secretary for Elementary and Secondary Education.

Appendix B

Compliance Agreement Under Title I of the Elementary and Secondary Education Act Between the United States Department of Education and the Vermont Department of Education

Title I of the Elementary and Secondary Education Act of 1965 (Title I), as amended by the No Child Left Behind Act of 2001, requires each State receiving Title I funds to satisfy certain requirements.

Each State was required to adopt academic content and achievement standards in at least mathematics, reading/language arts, and, beginning in the 2005-2006 school year, science. These standards must include the same knowledge and levels of achievement expected of all public school students in the State. Content standards must specify what all students are expected to know and be able to do; contain coherent and rigorous content; and encourage the teaching of advanced skills. Achievement standards must be aligned with the State's content standards and must describe at least three levels of proficiency to determine how well students in each grade are mastering the content standards. A State must provide descriptions of the competencies associated with each achievement level and must determine the assessment scores (“cut scores”) that differentiate among the achievement levels.

Each State was also required to implement a student assessment system used to evaluate whether students are mastering the subject material reflected in the State's academic standards. By the 2005-2006 school year, States were required to administer mathematics and reading/language arts assessments yearly during grades 3-8 and once during grades 10-12. Further, beginning with the 2007-2008 school year, each State was required to administer a science assessment in at least one grade in each of the following grade spans: 3-5, 6-9, and 10-12. A State's assessment system must:

Be the same assessment system used to measure the achievement of all public school students in the State;

Be designed to provide coherent information about student attainment of State standards across grades and subjects;

Provide for the inclusion of all students in the grades assessed, including students with disabilities and limited-English-proficient students;

Be valid, reliable, and of adequate technical quality for the purpose for which they are used and be consistent with nationally recognized professional and technical standards;

Involve multiple measures of student academic achievement, including measures that assess higher order thinking skills and understanding of challenging content;

Objectively measure academic achievement, knowledge, and skills without evaluating or assessing personal family beliefs and attitudes;

Enable results to be disaggregated by gender, each major racial and ethnic group, migrant status, students with disabilities, LEP students, and economically disadvantaged students;

Provide individual student reports; and

Enable itemized score analyses.

In addition to a general assessment, States were required to develop at least one alternate assessment for students with disabilities who cannot participate in the general assessment, with or without accommodations. An alternate assessment may be based on grade-level achievement standards, alternate achievement standards, or modified achievement standards. Like the general assessment, any alternate assessment must satisfy the requirements for high technical quality, including validity, reliability, accessibility, objectivity, and consistency with nationally recognized professional and technical standards.

The Vermont Department of Education (VTDOE) failed to timely meet certain of the statutory and regulatory requirements for its standards and assessment system. In order to be eligible to continue to receive Title I funds while working to comply with the requirements, Richard Cate, Commissioner of Education, indicated VTDOE's interest in entering into a compliance agreement with the United States Department of Education (Department). On June 5, 2008, the Department conducted a public hearing regarding: (1) Whether VTDOE's full compliance with Title I is not feasible until a future date; and (2) whether VTDOE is able to come into compliance with the Title I standards and assessment requirements within three years.

Pursuant to this Compliance Agreement under 20 U.S.C. Section 1234f, VTDOE must be in full compliance with the outstanding requirements of Title I no later than three years from the date of the Assistant Secretary's written findings, a copy of which is attached to, and incorporated by reference into, this Agreement. To achieve compliance with the standards and assessment requirements, VTDOE must submit the following evidence:

Academic Achievement Standards

1. Evidence of approved/adopted alternate academic achievement standards for students with the most significant cognitive disabilities in reading/language arts and mathematics for each of grades 3 through 8 and at least one grade in the 10-12 grade span.

2. Documentation of the development of academic achievement descriptors for the alternate assessment in the content area of science.

3. Evidence that the alternate academic achievement standards include for each content area:

a. At least three levels of achievement, including two levels of high achievement (e.g., proficient and advanced) that determine how well students are mastering a State's academic content standards, and a third level of achievement (e.g., basic) to provide information about the progress of lower-achieving students toward mastering the proficient and advanced levels of achievement;

b. Descriptions of the competencies associated with each achievement level; and

4. Evidence that the Board or other authority has adopted all alternate achievement standards.

5. Documentation that the State has reported separately the number and percent of those students with disabilities assessed on the alternate assessment based on alternate achievement standards, those assessed on an alternate assessment based on grade-level standards, and those included in the regular assessment (including those administered that assessment with appropriate accommodations).

6. Evidence that the State has documented the involvement of diverse stakeholders in the development of its alternate academic achievement standards.

Technical Quality

1. Evidence that the State has documented validity (in addition to the alignment of the alternate assessment with the content standards), as described in the Standards for Educational and Psychological Testing (AERA/APA/NCME, 1999).

2. For the alternate assessment, evidence that the State has provided documentation of the standard setting process, including a description of the selection of judges, methodology employed, and final results.

3. For the alternate assessment(s), evidence that the State has considered the issue of reliability, as described in the Standards for Educational and Psychological Testing (AERA/APA/NCME, 1999).

4. Evidence that the State has established:

a. Clear criteria for the administration, scoring, analysis, and reporting components of its alternate assessment; and

b. A system for monitoring and improving the ongoing quality of its alternate assessment. Start Printed Page 4407

Alignment

1. Evidence that the Alternate Grade-Level Expectations (AGEs) and all associated tasks across grade spans submitted for the Portfolio Assessment of Alternate Grade Expectations are aligned with State academic content standards in reading and mathematics.

2. Evidence that the State has developed ongoing procedures to maintain and improve alignment between the alternate assessment and standards over time, particularly if gaps have been noted.

Reports

1. Evidence that the State will produce individual student alternate assessment reports in terms of the State's revised alternate achievement standards. With respect to such individual student reports:

a. Evidence that these individual student reports provide information for parents, teachers, and principals to help them understand and address a student's specific academic needs. This information must be displayed in a format and language that is understandable to parents, teachers, and principals, for example, through the use of descriptors that describe what students know and can do at different performance levels. The reports must be accompanied by interpretive guidance for these audiences; and

b. Evidence that the State ensures that these individual student reports will be delivered to parents, teachers, and principals as soon as possible after the alternate assessment is administered.

During the period that this Compliance Agreement is in effect, VTDOE is eligible to receive Title I, Part A funds if it complies with the terms and conditions of this Agreement, as well as the provisions of Title I, Part A and other applicable Federal statutory and regulatory requirements that are not specifically addressed by this Agreement. The attached action steps constitute a detailed plan and specific timeline for how VTDOE will come into compliance with the Title I standards and assessment requirements. The action steps are incorporated by reference into this Compliance Agreement as though fully set forth herein and may be amended by joint agreement of the parties, provided full compliance is still feasible by the expiration of the Agreement.

In addition to all of the terms and conditions set forth above, VTDOE agrees that its continued eligibility to receive Title I, Part A funds is predicated upon its compliance with all statutory and regulatory requirements of that program, including those that are not specifically addressed by this Agreement, including any amendments to the No Child Left Behind Act of 2001.

If VTDOE fails to comply with any of the terms and conditions of this Compliance Agreement, including the action steps attached hereto, the Department may consider the Agreement no longer in effect and may take any action authorized by law, including the withholding of funds or the issuance of a cease and desist order. 20 U.S.C. 1234f(d).